Matter of New York City Asbestos Litig.

Matter of New York City Asbestos Litig. 2013 NY Slip Op 07854 Decided on November 26, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2013
Mazzarelli, J.P., Acosta, Moskowitz, Manzanet-Daniels, Gische, JJ.
11176N 190468/12 190315/12 190367/12

[*1]In re New York City Asbestos Litigation,

Ester Baruch, et al., Plaintiffs,

v

Baxter Healthcare Corporation, et al., Defendants,



Karl Fersch, et al., Plaintiffs-Respondents,

v

Amchem Products Inc., et al., Defendants, Volkswagen Group of America, Inc., Defendant-Appellant. Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for appellant. Weitz & Luxenberg, P.C., New York (Alani Golanski of counsel), for respondents.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 22, 2013, which, to the extent appealed from, granted plaintiffs' motion pursuant to CPLR 602 to consolidate to the extent of consolidating the cases of Juni, Fersch and Middleton for trial, unanimously affirmed, without costs.

Given that all three plaintiffs were exposed to asbestos products for vehicles in their work as mechanics over a substantially overlapping period of 40 years, and each is represented by the same counsel, and each case is trial ready, it cannot be said that the IAS court abused its discretion in ordering the three cases consolidated for trial (see Malcolm v National Gypsum Co., 995 F2d 346, 350-352 [2d Cir 1993]). While there are some differences, including that one plaintiff has mesothelioma while the other two have lung cancer, and other differences pointed out by defendant, this does not outweigh the substantial overlap of factual and legal issues, or [*2]suggest the prejudice of defendant's right to a fair trial (see Matter of New York City Asbestos Litig., 2011 NY Slip Op 31210[U], **5-7 [Sup Ct, NY County 2011]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2013

CLERK